Delhi High Court
Balbir Singh Sambhi vs Joint Secretary, Government Of ... on 17 February, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No.991/2010
% Date of Decision: 17.02.2010
Balbir Singh Sambhi .... Petitioner
Through Mr.Ravi Kant Jain, Advocate.
Versus
Joint Secretary, Government of India, Ministry of .... Respondent
Home Affairs
Through Mr.Ruchir Mishra, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in YES
the Digest?
ANIL KUMAR, J.
*
The petitioner challenges the order dated 3rd November, 2009
passed by Central Administrative Tribunal, Principal Bench in O.A
No.2929/2009 titled Balbir Singh Sambhi v. Joint Secretary,
Government of India & Ors dismissing his original application seeking
change of date of birth on the eve of his retirement from 16th November,
1948 to 20th October, 1951.
The petitioner was an employee with Ministry of Home Affairs and
had been working as a manager in the departmental canteen. According
to him before his impending retirement he visited his home town when
after discussion with his sisters, it transpired that his actual date of
birth is 20th October, 1951 and not 16th November, 1948 and
consequently he obtained an alleged birth certificate on 23rd October,
2008 allegedly showing his date of birth as 20th October, 1951. The
petitioner has already retired on 30th November, 2008 after attaining
the age of superannuation.
The petitioner consequently filed an original application before
Central Administrative Tribunal seeking quashing of order dated 10th
November, 2008 retiring the applicant with effect from 30th November,
2008 and to take back the petitioner in service and allow him to
continue in service keeping in view his correct date of birth.
The Tribunal has declined the application of the petitioner on the
ground that after examining the record of the case the Tribunal declined
to interfere with regard to change of date of birth on the eve of
retirement of the petitioner and further held that the petitioner cannot
be reinstated in the service after his retirement on 30th November, 2008.
The learned counsel for the petitioner has contended that he
came to know about his actual date of birth on the eve of his retirement
when he visited his sister. The learned counsel is, however, unable to
give any cogent ground as to how he could not have known the alleged
changed date of birth earlier. No rule or precedent has been shown by
the learned counsel which will entitle the petitioner for the change of
his date of birth after retirement and to take him back in service after
his retirement.
This is no more res integra that a Government official or an
educated employee cannot be allowed to change his date of birth at the
fag end of his career. The importance of the date of birth of an employee
given to his employer and accepted as correct by the later and entered
in the" Service and Leave record" of the former, cannot be
underestimated. When a person is taken into service on appointment,
he is required to declare his date of birth and produce a document in
support thereof. When on the basis of such declaration made or
certificate produced by the employee, an entry is made of his date of
birth in his record and there is no error on the part of the officials, then
the Government or the employer at the fag end of the career of such
employee, can decline to change the date of birth. Changing the date of
Birth in exercise of jurisdiction under Article 226 of the Constitution of
India, in such facts and circumstances is unwarranted.
Extraordinary nature of the jurisdiction vested in the High
Court‟s under Article 226 of the Constitution of India is not meant to
make employees of the Government or its instrumentalities to continue
service beyond the period of their entitlement according to the date of
birth accepted by such employers on the basis of such newly found
material or to grant relief regarding emoluments on the basis of such
change of date of Birth. The Supreme Court in U.P. Madhyamik
Shiksha Parishad v. Raj Kumar Agnihotri,(2005) 11 SCC 465 , at page
475 had held that the service record cannot be changed just a few years
before the retirement or at the fag end of his retirement. The Apex Court
had held as under :
"......It is thus seen from the above quoted judgments that
this Court has consistently taken the view that correction
in entries made in government records on the basis of
which the government servant got the service cannot be
allowed to be changed just a few years before retirement or
at the fag end of his retirement."
The Supreme Court had also held in Union of India v. Harnam
Singh, (1993) 2 SCC 162 that the alteration sought by an employee
after 35 years of his induction into service during which he had several
occasions to see the service book cannot be allowed. The Supreme
Court had held as under :
" .........In this case, there was a delay of five years in
seeking for alteration prescribed in Note 5 to FR 56( m ) as
substituted in 1979. This Court held that those already in
service prior to 1979, for a period of more than five years,
obliged to seek alteration within the maximum period of five
years from the date of coming into force of amended Note 5
in 1979. Alteration sought by the employee in 1991, 35
years after his induction into the service during which
period he had several occasions to see the service-book to
raise any objection regarding his date of birth cannot be
allowed in view of unexplained and inordinate delay."
In the circumstances, the petitioner has not been able to make
out a case entitling him to get his date of birth changed after retirement
and on that basis to get reinstated on the post from which he has
retired on 30th November, 2008 Considering the totality of facts and
circumstances, we do not find any illegality or irregularity in the order
of the Tribunal entitling petitioner for interference by this Court in
exercise of its jurisdiction under Article 226 of the Constitution of India.
The writ petition is without any merit and it is, therefore,
dismissed.
ANIL KUMAR, J.
FEBRUARY 17, 2010 MOOL CHAND GARG, J.
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